UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPIUNITED STATES OF AMERICAv. CRIMINAL CASE NO. 3:07CR192-b-aDAVID ZACHARY SCRUGGS

PETITIONER’S MEMORANDUM IN REPLY TO THE GOVERNMENT’S RESPONSETO MOTION OF DAVID ZACHARY SCRUGGS FOR DEPOSITIONS

Petitioner herewith offers his memorandum in reply to the Government’s response to thePetitioner’s Motion for Depositions. (Doc. 328).

Introduction

The Government’s response proves Petitioner’s point in two ways: First, it asks theCourt to deny depositions because it (the Government) already knows what it thinks the evidenceis and is not willing to allow the Petitioner to show that what the Government thinks it knows issimply not accurate. The Government may place whatever spin it wants to on the evidencebefore the Court. It cannot substitute its spin for evidence developed under the crucible of cross-examination of witnesses under oath. Second, the Government simply whistles past the properlypleaded and jurisdictionally sufficient pleadings that the Government’s misconduct prejudicedPetitioner in making his plea.

I.

The Government first asserts that this Court has already denied Petitioner’s request fordepositions. The ellipsis in the Government’s quote hides a critical word in the original motion.That Motion said that Petitioner “

reserves

the right also to ask for depositions of key persons.”(Emphasis added). (Doc. 316, at 4). Thus this Court has not yet considered the request nowbefore it.

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The purpose of discovery in civil litigation – which this case is – has been clearlyannounced by the Supreme Court.The new rules, however, restrict the pleadings to the task of general notice-givingand invest the deposition-discovery process with a vital role in the preparation fortrial. The various instruments of discovery now serve (1) as a device, along withthe pre-trial hearing under Rule 16, to narrowandclarify the basic issues betweenthe parties, and (2) as a device for ascertaining the facts, or information as to theexistence or whereabouts of facts, relative to those issues. Thus civil trials in thefederal courts no longer need be carried on in the dark. The way is now clear,consistent with recognized privileges, for the parties to obtain the fullest possibleknowledge of the issues and facts before trial.

Hickman v. Taylor

, 329 U.S. 495, 501 (1947). The Motions filed by Petitioner have beendesigned to achieve this purpose while recognizing the special requirements for discovery undera § 2555 proceeding. Indeed, it had been Petitioner’s belief that discovery, if permitted, wouldallow the Court to decide many of the issues in this case pursuant to Rule 56.The Government apparently prefers to carry on this hearing “in the dark,” suggesting thatlive witnesses brought by subpoena

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or writ of habeas corpus ad testificandum are preferable tothe narrowing of the issues contemplated by the usual discovery. Worse, the Government wantsthe Court to consider affidavits addressing only the Bar Complaint against Mr. Farese assufficient to decide (1) Petitioner’s claim that he is actually innocent of any bribery of orconspiracy to bribe Judge Lackey and (2) Petitioner’s claims of prosecutorial misconduct. The

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The Government says that, “Rule 45 of the Federal Rules of Civil Procedure does imposea 100-mile radius for the issuance of civil subpoenas, but Rule 12 of the rules applicable toSection 2255 proceedings clearly vests the Court with the discretion to permit the issuance of writs and nationwide subpoenas when necessary and, in fact, that has always been the practice inthis district.” Doc. 328 at 7, n3. The Government cites not a single example of a Courtexercising such a limitless subpoena power, and Rule 12 says absolutely nothing about thesubpoena power. Instead, it simply says that, “The Federal Rules of Civil Procedure, to theextent that they are not inconsistent with any statutory provisions or these rules, may be appliedto a proceeding under these rules.” Rules Governing Section 2255 Proceedings, 12.

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issues in this case are much broader than Mr. Farese’s conduct. These affidavits simply do notaddress the issues in this case, all of which the Court ordered for hearing.The Government also appears to forget a critical element of this proceeding: Petitionerbears the burden of showing his actual innocence.To establish actual innocence, petitioner must demonstrate that, “‘in light of allthe evidence,”’ “it is more likely than not that no reasonable juror would haveconvicted him.”

, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828 (1998).This burden requires Petitioner to show the Court that a reasonable juror would likely not findthe Petitioner guilty beyond a reasonable doubt. When acourt is assessing … whether a petitioner has made the requisite showing of innocence under

Carrier,

the analysis must incorporate the understanding thatproof beyond a reasonable doubt marks the legal boundary between guilt andinnocence. … It is not the district court's independent judgment as to whetherreasonable doubt exists that the standard addresses; rather the standard requiresthe district court to make a probabilistic determination about what reasonable,properly instructed jurors would do.

Schlup v. Delo

, 513 U.S. 298, 328, (1995).Given Petitioner’s burden, due process requires that Petitioner have the opportunity toprove his actual innocence by showing that all persons who could offer proof that Petitioner didnot know of any payment to Judge Lackey be permitted to say so in the manner most efficient forthe Court’s purposes. Thus the Government concedes that some people can testify, but noteveryone who might have knowledge. Judge Lackey’s testimony is important to Petitioner’sclaim of actual innocence. Well before Judge Lackey sought and Tim Balducci agreed to pay abribe, Judge Lackey recused himself from considering

Jones v. Scruggs

. Only after a meetingwith FBI Agent Delaney did Judge Lackey decide to do what is virtually unknown in judicial